Doe on dem. of Butner v. Chaffin, 61 N.C. 497, 1 Phil. 497 (1868)

Jan. 1868 · Supreme Court of North Carolina

61 N.C. 497, 1 Phil. 497

Doe on dem. of ADAM BUTNER v. N. S. A. CHAFFIN.

It is well settled in this State that a vendee of land who enters upon it under a contract of purchase, is a mere occupant at the will of the vendor, and that the latter may at any time put an end to such occupancy by demanding possession under a reasonable notice to quit; and he may then recover in ejectment if possession be not surrendered. Twenty-five days notice to quit in such case is reasonable.

The state of the accounts between the parties in regard to the purchase money does not affect the vendor’s right to recover possession at law, although it might affect his choice of such a remedy rather than that of a bill for specific performance in equity.

(Carson v. Baker, 4 Dev. 220: Love v. Edmundson, 1 Ire. 152; cited and approved.)

Ejectment, tried before Mitchell J., at Fall Term 1867 of the Superior Court of Forsythe.

The land in question was in the possession of the defendant, who had entered and still held under a contract of pur-/ chase from the lessor of the plaintiff. On the 23d day of February 1867 the vendor had given the defendant notice to quit on the 20th day of March succeeding. The demise in the declaration was laid upon the 21st day of March 1867 and the ouster upon the 22d.

It appeared that the vendee had paid to the vendor the larger part of the purchase money.

A verdict having been found for the plaintiff the defend ant obtained a Rule for a new trial, which having been discharged, there was Judgment, and Appeal.

W. L. Scott, for the appellant.

McLean and Wilson, contra.

Reade, J.

It must now be regarded as well settled in this State that when a person is let into the possession of a tract of land under a contract of purchase, he is but a mere occupant at the will of the vendor, until the price shall be paid and the title passed. The vendor may put an end to this occupancy at any moment by demanding the possession under a reasonable notice to quit, and if it be not surrendered he may then maintain an action of ejectment. Carson v. Baker, 4 Dev. 220; Love v. Edmonson, 1 Ire. 153. In the latter case three weeks notice to quit was deemed sufficient, and of course the time allowed for the defendant in the present case, which was more than three weeks, must be held to be long enough In Carson v. Baker the demise contained in the declaration was laid on the day on which the defendant was required to quit, which was decided to be too soon, and in consequence thereof the action failed, but that objection cannot be made in the case before us, because the demise is laid the.day after the determination of the notice to quit.

The payment by the vendee of the greater part of the purchase money' cannot make any difference so far as the right of the lessor of the plaintiff to recover in ejectment is concerned; but if the vendee should afterwards file a bill in equity for a specific performance, he will not only be allowed a credit for his payments, but also be entitled to an account of the profits of the land made by the vendor after he shall have recovered possession.

In this state of the law it will be a matter for the consideration of an unpaid vendor whether it will not be best for him to file a bill against his defaulting v.endee for a specific performance rather than recover back the possession of his land in an action at law. That, however, cannot affect the result in the present case. The judgment must be affirmed.

Per Curiam. Judgment affirmed.